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The case was reserved by Colt, J., upon the pleadings and the report of a master, for the consideration of the full court, and was as follows:

Richard Ensign, on February 14, 1848, being the owner of lots A and B, and occupying lot A as a homestead, conveyed lot B, in fee simple, with general covenants of warranty, to Joseph B. Huggins, who was then the owner of lot C. The deed described the land by metes and bounds, and following the description was this clause: “ With this express reservation, that no building is to be erected by the said Joseph B., his heirs or assigns, upon the land herein conveyed.”

The defendants purchased lots B and C in 1874. Of the deeds in the chain of title from Huggins, which were all duly recorded before the defendants purchased, some mentioned or referred to the reservation in Ensign's deed, but the deed to the defendants, which contained full covenants of warranty, made no mention of it or reference to former deeds. The defendants made no examination of the records before their purchase, and had no actual knowledge of the reservation.

The plaintiff purchased lot A of Richard Ensign by deed dated April 13, and recorded April 14, 1848. This deed made no mention of privileges or appurtenances, or of the reservation in the deed to Huggins. The defendants purchased their land, paying therefor its full market value, free of incumbrances, for the purpose of building thereon. The plaintiff notified them of the restriction before they commenced building, and forbade them so to do, and, upon their proceeding to build upon the land, brought this bill.

The master found that the greater part of the proposed building would stand upon lot B ; that it would not obstruct the view from the front rooms in the plaintiff's house, and only partially obstruct the view from the rooms in the rear part of the house ; and that its erection would be no appreciable damage or injury to the plaintiff's premises.

A. J. Waterman, for the plaintiff.
J. Devey, Jr., for the defendants.

MORTON, J. Both parties derive title from Richard Ensign. The deed of said Ensign, under which, through various mesne

conveyances, the defendants derive their title, conveys to Joseph B. Huggins a trian

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gular piece of land adjoining the lot now owned by the plaintiff, “ with this express reservation, that no building is to be erected by the said Joseph B., his heirs or assigns, upon the land herein conveyed.” Ensign, being owner of the fee, had the right to sell his land subject to such reservations or restrictions as to its future use and enjoyment as he saw fit to impose, provided they were not contrary to public policr. The restriction in this deed, that no building should be erected upon the land conveyed, was one which he had a right to make, and there is no room for doubt, that, if a building was erected in violation of this restriction, Ensign, as long as he lived and remained the owner of the adjoining land, would be entitled to relief in equity to enforce the restriction. Parker v. Nightingale, 6 Allen, 341; Whitney v. Union Railway, 11 Gray, 359; Badger v. Boardman, 16 Gray, 559.

The only question in the case is whether the plaintiff, who is the grantee of said Ensign, is entitled to the same remedy.

The reservation creates an easement, or servitude in the nature of an easement, upon the land conveyed. If this easement was created for v the benefit of the adjoining lot, of which the grantor in the deed re

mained the owner, and not for the personal convenience of the grantor, and was intended to be annexed to such lot, it would be appurtenant thereto, and would pass to a grantee thereof.

The question whether such an easement is a personal right, or is to be construed to be appartenant to some other estate, must be determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances.

In this case the triangular piece of land affected by the easement was a part of a large lot owned by Ensign. He retained the remainder of the large lot for his homestead. There is no suggestion that he had other land in the vicinity, which could be benefited by the restriction. It is difficult to see how he would have any interest in restricting the use of the land sold, except as owner of the house lot which he retained. The nature of the restriction also implies that it was intended for the benefit of this lot. A prohibition against building on the land sold would be obviously useful and beneficial to this lot, giving it the benefit of better light and air and prospect; this is its apparent purpose, while it would be of no appreciable advantage for any other purpose. The fairv inference is that the parties intended to create this easement or servitude for the benefit of the adjoining estate.

We are therefore of opinion that it was not a mere personal right in Ensign, but was an easement appurtenant to the estate which he conveyed to the plaintiff

. Dennis v. Wilson, 107 Mass. 591 ; Stearns v. Mullen, 4 Gray, 151. It follows that the plaintiff is entitled to the relief which she seeks.

The fact that the defendants, when they took their deed, had not actual knowledge of this reservation, is immaterial. They derive their title under the deed which contains it, and have constructive notice of the provisions of the deed. Whitney v. Union Railway, ubi supra.

Vor can the fact found by the master, that the erection of the building contemplated by the defendants would be no appreciable damage or injury to the plaintiff's premises ” affect the rights of the parties. Such an act of the defendants would be against the restriction by which they are bound, and a violation of the rights of the plaintiff, of which she cannot be deprived because in the judgment of others it is of little or no damage.

Decree for the plaintiffi

NORCROSS V. JAMES.
SUPREME JUDICIAL COURT OF MASSACHUSETTS.

1885. [Reported 140 Mass. 188.) HOLMES, J. One Kibbe conveyed to one Flynt a valuable quarry in Longmeadow, of six acres, bounded by other land of the grantor, with covenants as follows: “And I do for myself, my heirs, executors, and administrators, covenant with the said Flynt, his heirs and assigns, that I am lawfully seised in fee of the afore-granted premises, that they are free of all incumbrances, that I will not open or work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises in said Longmeadow." By mesne conveyances the plaintiffs have become possessed of the quarry conveyed to Flynt, and the defendants of the surrounding land referred to in the covenant. The defendants are quarrying stone in their land, like that quarried by the plaintiffs ; and the plaintiffs bring this bill in equity for an injunction.

The discussion of the question under what circumstances a landowner is entitled to rights created by way of covenant with a former owner of the land, has been much confused since the time of Lord Coke, by neglecting a distinction, which he stated with perfect clearness, between

only with the estate in the land, and those which are said to be attached to the land itself: “So note a diversity between a use or warranty, and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land." Chudleigh's Case, 1 Rep. 120 a, 122 b; s. c. nom. Dillon v. Fraine, Poph. 70, 71.

Rights of the class represented by the ancient warranty, and now by the usual covenants for title, are pure matters of contract

, and from a very early date down to comparatively modern times lawyers have been perplexed with the question how an assignee could sue upon a contract

West, Symboleog. I. sect. 35. Wingate's Maxims, 44, p. 20, 55, pl. 10. Co. Lit. 117 a. Finch's Case,

See Clark v. Martin, 49 Pa. 289 ; Phænic Ins. Co. v.Continental Ins. Co., 87 N. Y. 400_ accord. But see Skinner v. Shepard, 130 Mass. 180 ; Badger v.

Boardman, 16

those rights which run

to which he was not a party.

Gra 3, 559.

4. Inst. 85. But an heir could sue upon a warranty to his ancestor, because for that purpose he was eadem persona cum antecessore. See Y. B. 20 & 21 Ed. I. 232 (Rolls ed.); Overton v. Sydall, Poph. 120, 121 ; Oates v. Frith, Hob. 130; Bain v. Cooper, 1 Dowl. Pr. Cas. N. S. 11, 14. And this conception was gradually extended, in a qualified way, to assigns, where they were mentioned in the deed. Bract. fol. 17 b, 67 a, 380 b, 381. Fleta, III. c. 14, $ 6. 1 Britton, (Nich. ed.) 255, 256. Y. B. 20 Ed. I. 232–234 (Rolls ed.). Fitz. Abr. Covenant, pl. 28. Vin. Abr. Voucher, N, p. 59. Y. B. 14 Hen. IV. 56; 20 Hen. VI. 34 b. Old Natura Brevium, Covenant, 67, B, C, in Rastell's Law Tracts, ed. 1534. Doct. & Stud. Dial. 1, c. 8. F. N. B. 145, C. Co. Lit. 384 b. Com. Dig. Covenant, B, 3. Middlemore v. Goodale, Cro. Car. 503 ; s. C. Ib. 505 ; W. Jones, 406; Philpot v. Hoare, 2 Atk. 219.

But in order that an assignee should be so far identified in law with the original covenantee, he must have the same estate, that is, the same status or inheritance, and thus the same persona, quoad the contract. The privity of estate which is thus required is privity of estate with the original covenantee, not with the original covenantor; and this is the only privity of which there is anything said in the ancient books. See, further, Y. B. 21 & 22 Ed. I. 148 (Rolls ed.); 14 Hen. VIII. 4, pl. 5. Of course we are not now speaking of cases of landlord and tenant, and it will be seen that the doctrine has no necessary connection with tenure. F. N. B. 134, E. We may add, that the burden of an ordinary warranty in fee did not fall upon assigns, although it might upon an heir, as representing the person of his ancestor. Y. B. 32 & 33 Ed. I. 516 (Rolls ed.).

On the other hand, if the rights in question were of the class to which commops belonged, and of which easements are the most conspicuous type, these rights, whether created by prescription, grant, or covenant, when once acquired were attached to the land, and went with it, irrespective of privity, into all hands, even those of a disseisor.

66 So a disseisor, abator, intruder, or the lord by escheat, &c., shall have them as things annexed to the land.” Chudleigh's Case, ubi supra. See 1 Britton, (Nich. ed.) 361 ; Keilw. 145, 146, pl. 15; F. N. B. 180, N; Nevil's Case, Plowd. 377, 381. In like manner, when, as was usual

, although not invariable, the duty was regarded as falling upon land, the burden of the covenant, or grant, went with the servient land into all hands, and of course there was no need to mention assigns. See cases supra et infra. Thu phrase consecrated to cases where privity was not necessary was transit terra cum onere. Bract. fol. 382 a, b. Fleta, VI. c. 23, $ 17. See Y. B. 20 Ed. I. 360 (Rolls ed.); Keilw. 113, pl. 45. And it was said that " a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignee be not named in the covenant." Hyde v. Dean of Windsor, Cro. Eliz. 552; s. c. Ib. 457; 5 Rep. 24 a ; Moore, 399.

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It is not necessary to consider whether possession of the land alone would have been sufficient to maintain the action of covenant: it is enough for our present purposes that it carried the right of property. Neither is it necessary to consider the difficulties that have sometimes arisen in distinguishing rights of this latter class from pure matters of contract, by reason of their having embraced active duties as well as those purely passive and negative ones which are plainly interests carved out of a servient estate and matters of grant. The most conspicuous example is Pakenham's Case, Y. B. 42 Ed. III. 3, pl. 14, where the plaintiff recovered in covenant as terre-tenant, although not beir, upon a covenant or prescriptive duty, to sing in the chapel of his manor. Spencer's Case, 5 Rep. 16 a, 17 b. Another, which has been recognized in this Commonwealth, is the quasi easement to have fences maintained. Bronson v. Coffin, 108 Mass. 175, 185; S.

c. 118 Mass. 156. Repairs were dealt with on the same footing: they were likened to estovers and other rights of common. 5 Rep. 24 a, b. Hyde v. Dean of Windsor, ubi supra. See F. N. B. 127; Spencer's Cuse, ubi supra , Evore v. Strickland, Cro. Jac. 240; Brett v. Cumberland, 1 Roll. R. 359, 360; and other examples might be given. See Bract. 382 a, b; Fleta, VI. c. 23, § 17; Y. B. 20 Ed. I. 360; Keilw. 2 a, pl. 2; Y. B. 6 Hen. VII. 14 b, pl. 2; Co. Lit. 384 b, 385 a; Cockson v. Cock, Cro. Jac. 125 ; Bush v. Cole, 12 Mod. 24; s. C. 1 Salk. 196 ; 1 Show. 388; Carth. 232 ; Sale v. Kitchingham, 10 Mod. 158. The cases are generally landlord and tenant cases, but that fact has nothing to do with the principles laid down.

When it is said that in this class of cases there must be a privity of estate between the covenantor and the covenantee, it only means that the covenant must impose such a burden on the land of the covenantor us to be in substance, or to carry with it, a grant of an easement or quasi easement, or must be in aid of such a grant (Bronson v. Coffin, ubi supra); which is generally true, although, as has been shown, not invariably (Pakenham's Case, ubi supra); and although not quite reconcilable with all the old cases except by somewhat hypothetical historical explanation. But the expression “privity of estate" in this sense is of modern use, and has been carried over from the cases of warranty, where it was used with a wholly different meaning.

In the main, the line between the two classes of cases distinguished by Lord Coke is sufficiently clear; and it is enough to say, that the present covenant falls into the second class if either. Notwithstanding its place among the covenants for title, it purports to create a pure negative restriction on the use of land, and, for the moment, we will take it as intended to do so for the benefit of the land conveyed.

The restriction is, in form, within the equitable doctrine of notice. Whitney v. Union Railway, 11 Gray, 359; Parker v. Nightingale, 6 Allen, 341; Beals v. Case, 138 Mass. 138. See Austerberry v. Oldham, 29 Ch. D. 750; London & South Western Railway v. Gomm, 20 Ch. D. 562; Hayrood v. Brunswick Building Society,

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VOL. II.

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